Retired truck driver Robert Baxter, a Billings, Montana, resident, was dying of leukemia. He wanted to be able to choose the time and manner of his own death, and he turned to his physicians. He asked for a lethal dose of medication; his doctors sympathized, but declined to give him the prescription he wanted. They were concerned, they said, that doing so might expose them to criminal charges for assisting Mr. Baxter to commit suicide.

While suicide itself is usually not illegal, assisting another person to commit suicide is a crime in most American states. With the exception of Oregon and Washington (where state voter initiative actions have expressly legalized physician-assisted suicide in narrow circumstances), the notion of what is often called “physician aid-in-dying” has run up against the assisted-suicide prohibition.

Mr. Baxter and his physicians, with the assistance of a group called Compassion & Choices, decided to do something about Montana’s law. They asked the courts for an order recognizing Mr. Baxter’s rights under the Montana Constitution to seek his physicians’ assistance in ending his life, and those physicians’ authority to respond to his request.

In December, 2008, a state trial judge agreed, ruling that Montana’s Constitution promised its citizens both dignity and privacy. Those guarantees, said the judge, extended to the right of a physician to prescribe a lethal dose of medications. The Montana Attorney General appealed the ruling to the state’s Supreme Court.

On December 31, 2009, the state high court affirmed the trial judge’s ruling — though it used different logic to do so. Noting that it is always preferable to resolve issues without relying on Constitutional analysis if possible, the court ruled that Montana law would prevent the prosecution of a physician authorizing a lethal dose of medication for a competent, terminally ill patient requesting that prescription.

The court’s statutory analysis focused on the doctrine of “consent.” A patient who requested the lethal prescription has consented to the doctor’s actions. That would prevent a criminal prosecution, so long as the consent did not violate public policy — and the high court determined that no public policy considerations would be affected.

This circumstance can be distinguished, said the court, from the case of a noisy, dangerous fight between bar patrons who might “consent” to one another’s assault. No other individuals, and therefore no legitimate public policy, would be endangered by allowing physicians to respond to a patient’s request. Baxter v. State, December 31, 2009.

The Montana Supreme Court decision was not unanimous. Four of the seven Justices agreed with the majority opinion authored by Justice W. William Leapheart (one of those four, Justice John Warner, wrote separately to urge the Montana Legislature to take up the issue and resolve any uncertainties). One, Justice James C. Nelson, would have gone further — he argued for upholding the trial court’s Constitutional analysis. Two (Justice James A. Rice and District Judge Joe L. Hegel, sitting as a special Justice) would have reversed the trial court and found that “physicians who assist in a suicide are subject to criminal prosecution.”

Ironically, Mr. Baxter did not benefit directly from the court’s ruling. He died in 2008, the same day the trial judge ruled in his favor, and without ever having learned of his victory in either the trial court or the state Supreme Court.